State v. Jones

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1244

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Columbus County

Nos. 11 CRS 52691-92, 52694-95

ELIJAH JONES

Appeal by Defendant from judgments entered 6 June 2013 by

Judge Douglas B. Sasser in Columbus County Superior Court.

Heard in the Court of Appeals 5 March 2014.

Attorney General Roy Cooper, by Special Deputy Attorney

General L. Michael Dodd, for the State.

Parish & Cooke, by James R. Parish, for Defendant.

STEPHENS, Judge.

On 9 September 2011, Defendant Elijah Jones was indicted

for the first-degree murder of his wife, Joan Everette, the

felonious assault of Bobby Ray Shipman, and two counts of

discharging a weapon into occupied vehicles. The evidence at

Defendant’s trial in June 2013 tended to show the following:

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Defendant and Everette had a volatile relationship as

evidenced by, inter alia, a domestic violence protective order

(“DVPO”) against Defendant that Everette obtained in October

2009. By the date of the murder and assault in August 2011,

Everette had moved out of the marital home and was living at her

mother’s home. Everette and Shipman had been dating for several

months, despite the fact that each was still married to other

people. Defendant was aware of and unhappy about the

relationship between Everette and Shipman.

On 19 August 2011, Everette’s mother was in the hospital,

and Shipman spent the night with Everette in her mother’s home.

The next morning, Everette and Shipman drove to the hospital

together in Everette’s car. Once in the parking lot, Shipman

got into his own car and was preparing to drive away when

Defendant’s car suddenly pulled up between his car and

Everette’s. Defendant emerged from his car and pointed a

handgun at Shipman. Shipman laid down on the front seat and

pressed the gas pedal as multiple gunshots rang out. Shipman

was struck by three bullets, but was able to drive to the

hospital emergency room where he underwent surgery and

ultimately survived his wounds. Everette was not so lucky. She

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had been struck and killed by a single gunshot to the head while

still sitting in her car.

Shortly after the shootings, Defendant turned himself in at

the Columbus County Sheriff’s Department. In his statement to

law enforcement officers, Defendant said that he had followed

his wife’s car to the hospital and, when he saw Shipman emerge

from the vehicle, Defendant “flipped” and started shooting. At

trial, Defendant denied any domestic violence against Everette.

He also testified that he had not fired at Everette and Shipman

to harm them, but rather to scare them and out of fear that

Shipman was going to shoot Defendant.

The jury returned guilty verdicts on all four counts. The

trial court sentenced Defendant to life in prison without the

possibility of parole for Everette’s murder, a concurrent term

of 73 to 97 months in prison for the assault on Shipman, and two

consecutive terms of 25 to 39 months in prison for discharging

his gun into the victims’ vehicles. Defendant gave notice of

appeal in open court.

Discussion

Defendant makes three arguments on appeal: that the trial

court erred in (1) refusing to give his exact proposed jury

instruction on transferred intent, (2) refusing to give his

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proposed jury instruction on the absence of flight, and (3)

admitting evidence of firearms seized from him as a result of

the DVPO. We find no error.

I. Jury instruction on transferred intent

Defendant first argues that the trial court erred in

refusing to give his proposed jury instruction on transferred

intent. We disagree.

“Whether a jury instruction correctly explains the law is a

question of law, reviewable by this Court de novo.” State v.

Barron, 202 N.C. App. 686, 694, 690 S.E.2d 22, 29 (citation

omitted), disc. review denied, 364 N.C. 327, 700 S.E.2d 926

(2010). “However, an error in jury instructions is prejudicial

and requires a new trial only if there is a reasonable

possibility that, had the error in question not been committed,

a different result would have been reached at the trial out of

which the appeal arises.” State v. Castaneda, 196 N.C. App.

109, 116, 674 S.E.2d 707, 712 (2009) (citation and internal

quotation marks omitted).

“The prime purpose of a court’s charge to the jury is the

clarification of issues, the elimination of extraneous matters,

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and a declaration and an application of the law arising on the

evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186,

191 (1973) (citations omitted), cert. denied, 418 U.S. 905, 41

L. Ed. 2d 1153 (1974). Thus, “[i]t is the duty of the trial

court to instruct the jury on all substantial features of a case

raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370

S.E.2d 546, 549 (1988) (citation omitted). However, “a trial

court is not required to repeat verbatim a requested, specific

instruction that is correct and supported by the evidence, but

that it is sufficient if the court gives the instruction in

substantial conformity with the request.” State v. Brown, 335

N.C. 477, 490, 439 S.E.2d 589, 597 (1994) (citations omitted).

Under the doctrine of transferred intent,

it is an accepted principle of law that

where one is engaged in an affray with

another and unintentionally kills a

bystander or a third person, his act shall

be interpreted with reference to his intent

and conduct towards his adversary. Criminal

liability, if any, and the degree of

homicide must be thereby determined. Such a

person is guilty or innocent exactly as if

the fatal act had caused the death of his

adversary. It has been aptly stated that

“[t]he malice or intent follows the bullet.”

The doctrine of transferred intent does not

require or permit one fact to be presumed

based upon the finding of another fact.

Instead, under the doctrine of transferred

intent, it is immaterial whether the

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defendant intended injury to the person

actually harmed; if he in fact acted with

the required or elemental intent toward

someone, that intent suffices as the intent

element of the crime charged as a matter of

substantive law.

State v. Locklear, 331 N.C. 239, 245, 415 S.E.2d 726, 730 (1992)

(citations, some internal quotation marks, and some brackets

omitted).

Here, Defendant proposed that the trial court give four

paragraphs of instructions regarding transferred intent to the

jury:

[1] If at the time Elijah Jones fired his

revolver, he did so honestly believing in

the need to protect himself from imminent

death or serious harm, and if Elijah Jones

fired his revolver to protect himself from a

perceived threat from Bobby Shipman (and his

belief was reasonable under the

circumstances as they appeared to Elijah

Jones at the moment of the perceived

threat), and if a bullet fired by Elijah

Jones hit and killed Joan Everett[e], then

and in that event, Elijah Jones would be

only as guilty as to Joan Everett[e] as he

would have been had the bullet struck Bobby

Shipman.

[2] That is, if Elijah Jones killed Joan

Everett[e] unintentionally, but you find he

intended to shoot Bobby Shipman and instead

hit Joan Everett[e], Elijah Jones would only

be as guilty or innocent as if the fatal act

had caused the death of Bobby Shipman.

[3] Further, if Elijah Jones’ said use of

deadly force against Bobby Shipman was

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otherwise justified, but was executed so

negligently as to endanger Joan Everett[e],

nothing else appearing, then Elijah Jones

would be guilty of involuntary manslaughter.

[4] That is, if the defendant, Elijah Jones,

intended to harm one person but instead

harmed a different person, the legal effect

would be the same as if the defendant had

harmed the intended victim, and if a killing

of the intended person would be with malice,

then the killing of the different person

would also be with malice. Finally, if the

defendant’s intent was to act in self-

defense, and without malice, then that

intent would also be transferred to the

actual victim.

The court instructed the jury by reading paragraphs one and

four, but not paragraphs two and three.

As Defendant concedes in his brief, the first paragraph

accurately states the law regarding transferred intent as

applicable in this case. However, Defendant contends that

paragraph two was “necessary as a short[,] concise, explanatory

mandate” and as “a clarification of a complex concept[.]”

Defendant cites no authority for the proposition that an

accurate instruction on a legal concept must be followed by

further clarification and explanation, and we know of none.

Indeed, while the trial court did not “repeat verbatim

[Defendant’s] requested, specific instruction[,]” by his own

admission the court gave an “instruction in substantial

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conformity with the request.” See Brown, 335 N.C. at 490, 439

S.E.2d at 597. The trial court did not err in instructing the

jury on the doctrine of transferred intent, and accordingly,

Defendant’s argument is overruled.

II. Jury instruction on absence of flight

Defendant next argues that the trial court erred in denying

his proposed jury instruction on the absence of flight. We

disagree.

Defendant requested that the court give an instruction on

the “logical converse” of the pattern jury instruction which

permits a jury to consider a defendant’s flight as evidence

suggesting consciousness of guilt, to wit, that absence of

flight (or turning oneself in to the authorities, as occurred

here) can be considered as showing the lack of any consciousness

of guilt. Defendant acknowledges that “[o]ur Courts have held

differently[,]” citing State v. Burr, 341 N.C. 263, 461 S.E.2d

602 (1995), cert. denied, 517 U.S. 1123, 134 L. Ed. 2d 526

(1996); State v. Wilcox, 132 N.C. 1120, 44 S.E. 625 (1903); and

State v. Thomas, 34 N.C. App. 594, 239 S.E.2d 288 (1977), disc.

review denied, 294 N.C. 445, 241 S.E.2d 846, cert. denied, 439

U.S. 926, 58 L. Ed. 2d 318 (1978), but asserts that the

“position of the court flies in the face of logic.” Defendant’s

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argument on this issue flies in the face of precedent, the

guiding principle of this Court. See, e.g., In re Appeal from

Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)

(“Where a panel of the Court of Appeals has decided the same

issue, albeit in a different case, a subsequent panel of the

same court is bound by that precedent, unless it has been

overturned by a higher court.”). Defendant’s argument is

overruled.

III. Admission of evidence of additional firearms

Finally, Defendant argues that the trial court erred in

admitting evidence of firearms seized from him as a result of

the DVPO. Specifically, Defendant contends that this evidence

was not relevant and was thus inadmissible. Defendant has not

preserved his right to appellate review of this issue.

As a result of the DVPO Everette obtained, four firearms

were seized from Defendant,1 including the .44 Magnum revolver

Defendant would later use to shoot Everette and Shipman. The

other three firearms seized in 2009 were not involved in the

1

The DVPO expired on 5 November 2010 and was not renewed.

Thereafter, Defendant filed a motion for the return of the

weapons he surrendered. By order entered 10 December 2010, the

district court directed the sheriff’s department to return the

seized weapons to Defendant.

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attack. Citing Rule of Evidence 404(b), Defendant objected when

the State sought to introduce a copy of the DVPO and related

documents as State’s Exhibit 80. Exhibit 80 was some ten pages

long with some pages printed on both sides. Included in the

exhibit was a list of the firearms Defendant turned over to the

Columbus County Sheriff’s Department in compliance with the

order. The court admitted the domestic violence order and

related testimony, but agreed to give a limiting instruction

pursuant to Rule 404(b). A deputy clerk of the superior court

in Columbus County used the exhibit to illustrate her testimony

and, inter alia, read the list of seized firearms to the jury.

“In order to preserve a question for appellate review, a

party must have presented the trial court with a timely request,

objection or motion, stating the specific grounds for the ruling

sought if the specific grounds are not apparent.” State v.

Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see also

N.C.R. App. P. 10(a)(1). Defendant did not object to Exhibit 80

on the basis of relevance per Rules of Evidence 401 or 402, but

rather under Rule 404(b). Where a defendant argues a different

basis for exclusion of evidence on appeal than he brought

forward at trial, his objection is not preserved for appellate

review. See State v. Rayfield, __ N.C. App. __, __, 752 S.E.2d

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745, 762 (2014); see also State v. Benson, 323 N.C. 318, 322,

372 S.E.2d 517, 519 (1988) (“Defendant may not swap horses

[concerning his argument] after trial in order to obtain a

thoroughbred upon appeal.”) (citation omitted). “Because

Defendant did not argue plain error in the alternative, he may

not seek appellate review of this issue.” Rayfield, __ N.C.

App. at __, 752 S.E.2d at 762.

NO ERROR.

Judges BRYANT and DILLON concur.

Report per Rule 30(e).